National Labor Relations Board (NLRB)

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Recent years have shown a continued increase in unionization and organization activities within the American workforce, as measured by union representation petition filings with the National Labor Relations Board’s (NLRB).

The NLRB confirmed this upward trend at the close of FY 2024, which ended on September 30, 2024. According to the NLRB’s data, union election petitions increased by 27 percent over FY 2023, totaling 3,286 petitions filed. The data also shows that the number of union election petitions more than doubled the 1,638 petitions filed in FY 2021.Continue Reading Unionization activity continues to surge in the U.S.

In October 2023, the National Labor Relations Board issued a final rule that lowered the standard for companies to qualify as joint employers. You can read more about the rule here.

On March 8, 2024, a federal judge in Texas struck down the final rule. U.S. District Judge J. Campbell Barker granted summary judgment in favor of the business coalition that challenged the 2023 rule. In short, the 2023 rule established a two-step test which requires: (1) the entity qualify as a common-law employer of the workers in question, and if so (2) the entity have control over one or more essential terms and conditions of employment. The court agreed with the business coalition’s contention that “the second test is always met if the first test is met, so the rule’s joint employer inquiry has just one step for all practical purposes.” The court found that “if an entity exercises or has the power to exercise control (even indirect control) over at least one essential term, the entity is an employer, jointly with workers’ undisputed employer.” And because such a result “would treat virtually every entity that contracts for labor as a joint employer,” the Board’s 2023 final rule “exceeds the bounds of the common law and is thus contrary to law.”Continue Reading Texas judge vacates NLRB’s new joint employer rule

Employers in all industries should take notice that efforts to unionize appear to be spiking in 2024.  Indeed, data made available by the National Labor Relations Board (NLRB) shows that, in just the first few months of the current fiscal year, the number of union representation cases, or so-call “R-cases,” filed with the NLRB is on a meteoric rise – indicating that recent trends with respect to union organization efforts may be amplifying.

This was predicted in our prior article about the NLRB’s decision in Cemex Construction Materials Pacific, LLC, which established a new framework for the union representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act. The time for the employer to act is limited, as it is generally held that the employer has only 14 days after the demand for recognition in which to file an RM petition.Continue Reading Employers take notice: Union representation petitions are spiking in 2024

Governmental entities play a vital role in upholding federal labor and employment regulations and would face significant disruption in the event of a government shutdown. In September, we provided a brief review on how a shutdown would affect the government agencies that enforce federal labor and employment laws — the U.S. Equal Employment Opportunity Commission…

In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.Continue Reading NLRB’s recognition of Dartmouth College men’s basketball team as employees could change collegiate sports forever

On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule

On October 26, 2023, the National Labor Relations Board issued a final rule to replace and essentially reverse the joint employer test issued under the Trump Administration. The new test drastically lowers the standard for companies to qualify as joint employers, making them responsible for labor violations and saddling them with obligations with respect to union negotiations. The final rule, which rescinds and replaces the prior regulation, is set to take effect on December 26, 2023, on a prospective basis only.

The 2020 rule required that a company have “substantial direct and immediate control” over the “essential terms or conditions” of a worker’s employment in order to be held liable as a joint employer. In a major “about face”, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more terms or conditions of employment is sufficient to establish joint employment. The Board published an “exhaustive list” of seven categories of terms or conditions that it will consider “essential” for purposes of the joint employer inquiry:

  • Wages, benefits, and other compensation;
  • Hours of work and scheduling;
  • Assignment of duties to be performed;
  • Supervision of the performed duties;
  • Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  • Tenure of the employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Continue Reading NLRB Issues Final Rule Replacing Joint Employer Test

Government agencies are integral to the enforcement of federal labor and employment laws and will be dramatically impacted by a government shutdown. Below is a synopsis of the impact on the main government agencies responsible for enforcing federal labor and employment laws—the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Labor (DOL); and the…

The National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. In the decision, the NLRB overruled the long-standing standard in Linden Lumber because, in the Cemex majority’s view, it was inadequate to…

On August 2, the National Labor Relations Board issued the Stericycle, Inc. decision, in which it reinstated a modified version of the Board’s pro-employee Lutheran-Heritage standard for scrutinizing employer workplace rules. Under this new standard, a rule or policy is “presumptively unlawful” if it tends to chill employees from engaging in protected conduct under Section…